(310.03 


\3,S.     V.    l).V..6on<i    e,V  <^V.. 


of  tftc 

Wini\}tv^itV  of  igortjj  Carolina 


CnbottJeb  hp  tlTfje  dialectic 

anb 


UNITED  STATES  v.  D.  L.  BOYD  ET  AL. 


United  States  circuit  court  of  appeals.     Fourth  circuit.     Appeal  from  the  cir- 
cuit court  of  the  United  States  for  the  western  district  of  North  Carolina. 

The  United  States,  appellaxt.  ) 

V.  -  No.  229. 

D.  L.  Boyd  et  al.,  appellees.    ) 

(Argued  May  14,  1897.     Decided  November  5,  1897.) 

Heard  bj'  Cxoff.  circuit  judge,  and  Hughes  and  Brawley.  district  judges. 

R.  B.  Glenn.  United  States  attorney  -vestern  district  of  North  Carolina,  for 
appellant;  Louis  M.  Bourne,  George  H.  Smathers,  and  W.  T.  Crawford,  for  the 
appellees. 

GoFF,  circuit  judge: 

This  is  a  suit  in  equity  filed  in  the  circuit  court  of  the  United  States  for  the 
western  district  of  North  Carolina  against  D.  L.  Boyd.  Harry  Dickson.  W.  T. 
Mason,  and  the  Eastern  Band  of  Cherokee  Indians,  the  complainants  Ijeing  the 
United  States  of  America,  Sampson  Owl,  Lewis  H.  Smith.  Comeback  Wolf,  and 
all  other  of  the  Cherokee  Indians  who  may  choose  to  come  in  and  make  themselves 
party  plaintiffs. 

It  is  set  forth  in  the  bill  that  one  William  H.  Thomas  and  wife,  for  value 
received  and  as  directed  by  a  decree  of  the  United  States  circuit  court  for  the 
western  district  of  North  Carolina,  convej^ed  by  deed  in  fee  simple  to  the  Eastern 
Band  of  Cherokee  Indians  a  large  tract  of  land  containing  many  thousand  acres, 
.situated  in  the  State  of  North  Carolina,  and  known  as  the  Qualla  Boundary;  that 
subsequent  to  the  execution  of  said  deed  the  Eastern  Band  of  Cherokee  Indians 
entered  into  the  possession  of  said  lands,  which  were  necessary  to  their  support 
and  maintenance;  that  in  said  deed  was  inserted  the  following  clause,  to  wit: 
To  have  and  to  hold  the  above-described  premises,  with  the  appurtenances 
j  thereunto  belonging,  unto  the  said  Eastern  Band  of  North  Carolina  Cherokee 
I  Indians,  their  heirs  and  successors,  forever,  but  without  power  of  alienation 
I  exce^Jt  by  and  with  the  assent  of  their  council  and  the  approval  of  the  President 
of  the  United  States:"  that  after  said  band  of  Indians  had  so- entered  into  the 
posses.sion  of  the  land  described  some  of  them,  with  the  approval  and  assent  of 
their  council,  entered  into  a  contract  with  the  defendant  D.  L.  Bcyd,  by  which 
all  the  timber  in  and  upon  a  part  of  said  land,  containing  about  ";]o. 0110  acres, 
[known  as  the  Cathcart  tract,  was  sold  to  him  for  the  sum  "of  Sl.jjOOO,  payable  in 
!  three  installments  of  s.5,00()  each;  that  immediately  after  the  execution  of  such 
I  contract  of  sale  said  Boyd  made  a  sul)contract  with  tlie  defendants  Dickson  and 
Mason,  and  that  they  took  possession  of  the  land  with  a  large  force  of  men.  who 
commenced  to  cut  and  destroy  said  timber  and  to  make  arrangements  to  ship  the 
same  to  market:  that  many  of  the  Indians  of  th>  Cherokee  band,  among  whom 
are  those  joined  as  complainants  with  the  United  States,  are  opposed  to  said  con- 
tract, and  think  it  is  not  for  the  best  interest  of  the  band:  that  such  contract  of 
.sale  was  never  presented  to  the  President  of  the  United  States  for  his  assent  and 
has  never  been  approved  by  him,  liut  that  the  Department  of  tlie  Interior,  acting 
for  the  United  Statics  in  its  dealings  with  the  Eastern  Band  of  Cherokee  Indian.s. 
has  refu.sed  to  ratify  and  approve  such  contract:  that  such  contract  to  cut  the 
timber  from  said  land  was  forbidden  by  the  terms  of  the  deed  from  saiil  Thomas 
and  wife  unless  the  same  was  assented  to  and  approved  1  ly  the  President  of  tlie 
United  States,  and  that,  as  he  has  refused  to  ratify  the  same,  it  is  absolutely  void, 
and  that,  therefore,  the  action  nf  the  defendants  in  cutting,  destroying,  hauling, 
and  removing  said  timber  is  unwarranted  and  without  legal  authority. 

.37y 


Pl^llf 


580  DECISION    U.  B.  COURT. 

It  in  further  alleged  in  the  bill  that  by  certain  acts  of  the  Congress  of  the  United 
States,  and  also  by  certain  treaties  heretofore  made,  as  well  as  by  the  laws  of  the 
State  of  Nortli  Carolina,  that  the  Eastern  Band  of  Cherokee  Indians  have  been  rec- 
ognized as  a  tril)e  of  Indians,  under  the  control  and  government  of  the  United 
States,  to  the  same  extent  as  the  Indians  on  the  reservations  are  governed;  that 
by  reason  of  such  relation  between  said  Indians  and  the  United  States  the  proper 
ofificers  of  the  sauae  have  the  right  to  control  the  action  of  said  band  and  to  super- 
intend all  matters  appertaining  to  their  welfare,  and  to  that  end  to  reject  the  con- 
tract so  made  with  Boyd  as  being  contrary  to  the  true  interests  of  said  Indians; 
that  the  complainants,  under  the  law  and  acting  in  the  interests  of  said  band  of 
Indians,  have  the  right  to  and  do  object  to  the  waste  being  committed  on  said 
lands  by  the  removal  of  said  timber;  and  therefore  they  ask  that  the  said  defend- 
ants be  restrained  from  doing  so.  The  complainants  ask  in  their  bill  that  the 
court  will  pass  upon  and  construe  all  matters  in  relation  to  said  Eastern  Band  of 
Cherokee  Indians,  including  the  right  of  their  council  to  lease  said  lands  and  to 
sell  the  timber  thereon,  and  also  to  say  as  to  the  right  of  the  United  States  to  con- 
trol, manage,  and  superintend  the  affairs  of  said  Indians,  and  what  right,  if  any, 
the  defendants  have  to  cut  and  remove  the  timber  from  the  said  land. 

The  complainants  claimed  that  the  contract  with  Boyd  was  void,  and  that  unless 
the  defendants  were  prohibited  from  cutting  and  selling  the  timber  mentioned  a 
lasting  and  irreparable  injury  would  be  done  the  Eastern  Band  of  Cherokee 
Indians,  who  are  the  wards  of  the  United  States.  An  injunction  was  prayed  for, 
as  also  an  accounting.  On  the  filing  of  the  bill,  which  was  duly  sworn  to,  the 
court  below,  on  the  20th  day  of  February,  1895,  entered  an  order  requiring  the 
defendants  to  appear  on  the  second  Monday  in  April,  1895,  and  show  cause  why 
they  should  not  l;e  restrained  and  perpetually  enjoined  from  cutting  and  hauling 
the  timber  from  said  land,  and  in  the  meantime  their  agents  and  servants  were 
restrained  from  so  cutting  and  hauling. 

The  Eastern  Band  of  Cherokee  Indians,  acting  by  and  through  Stillwell  Saunookee, 
principal  chief;  Will  Talalah,  vice-chief;  Andy  Standingdeer,  Wesley  Standing- 
deer,  Jesse  Reed,  Dawson  George,  Screamer,  Sevier  Armachame,  Oocumma.  Mor- 
gan Calhoun,  Abraham  Hill,  and  Climbing  Bear,  members  of  their  council,  filed  its 
answer  to  the  bill  on  the  16th  day  of  April,  1895.  In  said  answer  the  allegation  in 
the  bill  that  William  H.  Thomas  and  wife  conveyed  the  land  known  as  the  Qualla 
Boundary  to  the  Eastern  Band  of  Cherokee  Indians  is  denied,  and  it  is  claimed  that 
the  same  was  conveyed  by  William  Johnston  and  wife  in  fee  simple ;  but  it  is 
insisted  that  said  deed  was  not  executed  in  pursuance  of  the  award  therein  referred 
to,  which  directed  that  the  deed  should  be  made  by  said  William  Johnston  "to  the 
Eastern  Band  of  Cherokee  Indians,  or  to  some  trustee  for  them,"  and  hence  it  is 
claimed  that  the  words  found  therein  as  follows,  "  but  without  the  power  of  aliena- 
tion, except  bj'  and  with  the  assent  of  their  council  and  the  approval  of  the  President 
of  the  United' States,"  was  unauthorized  by  the  award  referred  to  and  inconsistent 
with  the  tenure  of  a  fee-simple  estate,  in  that  it  created  a  perpetuity,  which  is 
forbidden  by  the  constitution  and  laws  of  the  State  of  North  Carolina.  And  it  is 
also  set  out  in  the  answer  that  by  a  decree  entered  on  the  15th  day  of  October, 
1894.  in  the  two  suitS  pending  in  the  circuit  court  of  the  United  States  for  the 
western  district  of  North  Carolina,  entitled,  respectively.  Eastern  Band  of  Chero- 
kee Indians  r.  William  H.  Thomas,  William  Johnston  et  al.,  and  the  United  States 
V.  William  H.  Thomas,  William  Johnston  et  al..it  was  adjudged  that  said  words 
so  inserted  in  the  deed  were  unauthorized  and  void,  and  it  was  ordered  that  a  new 
deed  should  be  executed,  omitting  therefrom  the  words  so  found  in  the  proviso 
mentioned. 

It  is  also  claimed  in  the  answer  that  the  Eastern  Band  of  Cherokees  did  not  in 
fact  enter  into  the  possession  of  said  land  under  and  subsequent  to  the  date  of  the 
Johnston  deed,  but  that  they  and  their  ancestors  had  been  living  continiiously  on 
said  Qualla  Boundary  of  land  under  a  contract  of  purchase  of  the  same  made  with 
William  H.  Thomas  soon  after  the  treaty  of  New  Echota  between  the  United 
States  and  the  Cherokee  Nation,  dated  the  29th  of  December,  1835  (7  Stat.  L., 
478),  and  that  title  to  said  land  is  claimed  by  said  Indians  under  that  con- 
tract, the  award  made  concerning  the  same,  and  the  decree  aforesaid  entered  in 
the  said  two  chancery  causes  mentioned.  It  is  admitted  in  the  answer  that  the 
council  of  the  Eastern  Band  of  Cherokee  Indians  sold  the  timber  on  the  Cathcart 
tract  of  the  Qualla  Boundary  of  land  to  the  defendant.  D.  L.  Boyd,  at  the  price  of 
,sl5,000,  and  that  he  resold  the  same  to  his  codefendants.  Mason  and  Dickson,  and 
also  that  said  timber  was  being  cut  and  jirepared  for  the  market  until  the  restrain- 
ing order  was  issued  in  this  case.  It  is  also  admitted  in  this  answer  that  the  con- 
tract with  Boyd  was  not  approved  by  the  President  of  the  United  States,  and  also 
that  the  Secretary  of  the  Interior  refused  to  ratify  tlie  same;  biit  it  is  claimed  that 
it  was  not  necessary  to  the  validity  of  said  contract  that  it  should  have  either  the 


CHEROKEE    TIMBER    CASE.  fjSl 

approval  of  the  President  or  the  ratification  of  the  Secretary  of  the  Interior,  and 
therefore  it  was  insisted  that  the  cutting  of  said  timber  was  not  an  act  of  trespass 
on  the  part  of  the  defendants,  but  that  it  was  lawfully  done,  as  the  sale  so  made 
by  the  council  of  the  Eastern  Band  of  Cherokee  Indians  to  said  Boyd  was  in  all 
respects  valid. 

The  fiTrther  claim  is  made  in  said  answer  that  the  true  status  of  the  Indians 
mentioned  was  that  thej'  were  citizens  of  the  State  of  North  Carolina,  and  that 
they  have  been  such  since  soon  after  the  said  treaty  of  New  Echota,  and  that  as 
such  citizens  they  were  incorporated  a  body  politic  by  the  general  assembly  of 
North  Carolina  in  the  year  1889.  and  that  by  the  decree  mentioned  as  entered'  on 
the  l.jth  daj"  of  October,  1894,  the  title  to  the  Qualla  Boundary  was  vested  in  said 
Indians  as  a  corporation;  that  the  general  assembly  of  North  Carolina,  at  the  ses- 
sion held  on  the  8th  day  of  jNIarch.  1895,  passed  an  act  amending  said  act  of  incor- 
poration of  1889  and  confirming  the  said  contract  of  the  sale  to  Boj'd;  that  the 
Eastern  Band  of  Cherokee  Indians,  against  whom  this  suit  is  brought,  are  those 
Indians  and  their  descendants  who,  after  the  treaty  of  New  Echota,  remained  in 
North  Carolina  and  became  citizens  of  that  State  by  virtue  of  the  eighth  and 
twelfth  articles  of  that  treaty,  and  that  they  have  since  said  treaty  paid  taxes  on 
their  real  and  personal  property;  that  they  have  A'oted  at  State  and  national  elec- 
tions, and  that  they  have  been  subject  to  all  the  liabilities  and  entitled  to  all  the 
privileges  and  immunities  of  other  citizens  of  the  State  of  North  Carolina;  that 
the  council  of  said  band  of  Indians,  at  different  times  from  the  year  1890  to  the 
j^ear  1893  made  application  to  the  Interior  Department  for  permission  to  sell  the 
timber  on  s;iid  land,  but  that  authority  so  to  do  was  refused;  tliat  the  council  so 
applied  to  the  Interior  Department  for  authority  to  sell  such  timber  because  the 
United  States  have  for  the  past  twelve  or  fifteen  years  appropriated  money  to  carry 
on  the  Cherokee  training  school,  and  the  council  did  not  wish  to  incur  the  displeasure 
of  the  Commissioner  of  Indian  Affairs  and  the  Secretary  of  the  Interior,  and  hence  it 
sought  their  cooperation  in  making  said  sale,  and  not  because  the  council  believed 
that  the  approval  of  the  President  or  the  consent  of  the  Secretary  of  the  Interior  was 
necessary  to  a  valid  sale  of  said  timber.  The  answer  further  states  that  of  the 
blo.UOO  to  be  paid  by  Boyd  for  the  timber,  the  sum  of  $6,000  has  been  paid  by  him 
to  said  council,  and  that  the  remaining  $9,000  with  interest  at  6  per  cent  per  annum, 
is  still  due  and  unpaid,  but  is  secured  by  a  lien  on  the  trees  sold,  as  is  shown  by 
said  contract.  Other  matters  not  involved  in  this  suit,  and  not  esssential  to  the 
decision  of  the  questions  to  be  disposed  of,  are  mentioned  in  the  answer,  but  we 
do  not  deem  it  necessary  to  refer  to  them  now. 

The  joint  and  several  answers  of  the  defendants  Dickson  and  Mason  was  also 
filed,  and  likewise  the  answer  of  the  Dickson-Mason  Lumber  Company,  to  which 
company  defendants  Dickson  and  Mason  had  sold  and  transferred  their  interest  in 
the  Boyd  contract,  and  which  said  Dickson-Mason  Lumber  Company  had  also 
been  made  a  defendant  to  the  bill  by  order  of  court.  These  answers,  except 
as  to  certain  matters  peculiar  to  the  said  sejiarate  respondents,  make  the  same 
defense  to  the  allegations  of  the  bill  as  was  made  in  the  answer  of  the  Eastern 
Band  of  Cherokee  Indians,  and  the  same  will  not  be  again  set  forth.  No  answer 
was  filed  by  the  defendant  Boyd. 

The  court  below,  on  February  11, 1896,  appointed  George  H.  Smathers  receiver, 
with  instructions  to  collect  the  unpaid  purchase-money  notes  given  for 'said  tim- 
])er,  and  to  take  such  steps  as  might  be  necessary  to  protect  the  interest  of  the 
rightful  owner  in  the  timber  that  had  been  cut.  but  which  had  not  been  removed 
and  was  liable  to  deterioration  in  value. 

The  court  also  referred  the  cause  to  the  standing  master,  with  instructions  that 
he  inquire  into  all  the  facts  connected  with  the  contract  in  issue  and  the  circum- 
stances under  which  it  was  made,  the  adequacy  of  the  consideration  tlierefor. 
and  the  existence  of  any  fraud  or  unfair  dealing  therein. 

The  master  duly  returned  his  report,  together  with  the  evidence  taken  before 
him.  from  which  it  appears  that  Boyd  contracted  for  the  timber  on  the  08th  of 
September,  1.S9:3,  agreeing  to  pay  $15,000  for  the  same,  and  that  he  sold  it  to  Mason 
and  Dickson  in  December,  1893,  for  $-25,000:  that  H.  (1.  Ewart,  by  a  contract  with 
said  Indians  made  in  October,  1891.  was  to  receive  ','0  per  cent  of  the  amount  real- 
ized from  the  sale  of  tlie  timber  for  services  rendered  bj'  hini  in  the  negotiations 
preceding  said  sale;  that  in  the  opinion  of  the  witnesses  examined  the  sum  of 
$15,000  was  an  adequate  and  fair  price  for  the  timber  sold  to  Boyd.  The  master  so 
reported,  and  also  stated  that  there  was  no  fraud  or  unfair  dealing  in  the  making 
of  said  contract.  The  court  on  the  1  Itli  day  of  February.  189{).  entered  an  order 
granting  said  Ewart  the  riuht  to  intervene  in  this  suit,  which  he  did  l)y  petition, 
and  the  court  by  decree  of  that  date  dissolved  the  injimction  and  restraining  order 
granted  when  the  bill  was  filed,  and  authorized  the  parties  to  the  contract  relating 
to  the  timber  to  carry  the  same  out  pursuant  to  the  terms  thereof.     The  court 


582  DECisio:^  u.  s.  court. 

below  also,  on  April  j,  1897,  passed  a  decree  directing  the  allowance  of  the  claim 
of  the  petitioner.  H.  G.  Etvart.  and  that  provision  should  be  made  for  paying  the 
same  cat  of  the  funds  to  be  realized  from  the  sale  of  said  timber. 

From  these  decrees  the  United  States  appealed,  claiming  that  the  court  below 
erred  as  follows: 

First.  Because  while  it  held  that  the  Eastern  Band  of  Cherokees  is  a  ward  of 
the  nation,  and  is  subject  to  the  control  of  the  Department  of  the  Interior,  still  it 
held  that  the  contract  of  said  Indians  relating  to  the  sale  of  the  timber  on  their 
land  Avas  good  and  binding,  unless  fraud  or  undue  influence  in  connection  with 
the  execution  of  the  same  was  shown.  The  United  States  contend  that  as  said 
Indians  are  wards  of  the  nation,  all  contracts  made  by  them  are  void,  unless  they 
are  approved  by  the  proper  officials  of  the  Government. 

Second.  It  is  claimed  that  the  court  erred  in  holding  that  the  contract  of  said 
Indians  with  Ewart  was  binding  and  of  force,  as  the  same  was  without  the  approval 
of  the  Department  of  the  Interior. 

Third.  That  even  if  the  contract  with  Ewart  was  a  valid  one,  still  the  court  erred 
in  holding  that  he  had  comi)lied  \\ith  the  same  and  in  directing  that  he  be  paid 
from  the  proceeds  of  said  timber. 

We  fully  agree  with  the  insistence  of  the  complainants  below  that  the  Eastern 
Baud  of  Cherokee  Indians  are  the  wards  of  the  rxation  and  that  tJiey  have  been 
treated  as  such  since  the  year  1848  by  the  executive  and  legislative  departments  of 
the  Government:  and  in  this  connection  we  may  remark  that  said  Indians  them- 
selves have  recognized  such  relationship  from  said  date  down  to  the  time  during 
which  the  negotiations  for  the  sale  of  the  timber  now  in  controversy'  were  being 
carried  on.  Therefore  we  hold  that  the  court  below  had  jurisdiction  of  this  suit, 
and  that  it  was  not  only  proper,  but  that  it  was  the  diity  of  the  United  States  to 
take  such  steps  and  to  institute  such  proceedings  as  would  fully  protect  the  inter- 
ests of  said  band  of  Indians.  We  are  unable  to  agree  with  the  elaii  a  of  the  appellees 
that  by  virtue  of  the  treaty  of  New  Echota  this  Eastern  Band  of  Cherokees  became 
citizens  of  the  State  of  North  Carolina  and  of  the  United  States.  By  the  twelfth 
article  of  that  treaty  it  was  provided,  in  substance,  that  those  individuals  and  fam- 
ilies of  the  Cherokee  Nation  that  were  averse  to  a  removal  to  the  Cherokee  coun- 
try west  of  the  Mississippi,  and  were  desirous  of  becoming  citizens  of  the  States 
where  they  resided,  and  such  as  were  qualified  to  take  care  of  themselves  and  of 
their  property  and  to  become  useful  citizens,  were  to  be  permitted  to  remain  within 
said  States  (North  Carolina.  Tennessee,  and  Alabama),  and  were  to  be  entitled  to 
receive  their  due  portion  of  all  the  ijersonal  benefits  accruing  under  said  treaty  for 
their  claims,  improvements,  and  per  capita,  and  to  a  prescriptive  right  to  certain 
lands. 

This  certainly  did  not  confer  citizenship  on  anj-  portion  of  the  Cherokee  Indians: 
and  we  are  unable  to  find  any  statute  or  any  treaty  that  makes  them  citizens  of 
the  United  States,  oi*  that  authorizes  them  "to  become  citizens  by  naturalization. 
The  action  or  assent  of  the  United  States  is  absolutely  essential  in  order  to  enable 
the  Indian  tribes  or  bands,  or  individual  members  of  the  same,  to  renounce  the 
dependent  condition  caused  by  the  state  of  pupilage  in  Avhicli  the  Indians  have 
been  since  the  adoi)tion  of  the  Federal  Constitutimi.  If  the  treaty  of  New  Echota 
can  be  held  to  authorize  the  members  of  the  Eastern  Band  of  Cherokees  to  apply 
to  the  courts  for  naturalization  on  shoAving  satisfactory  i^roof  of  fitness  for  civi- 
lized life  on  their  part,  still  it  could  not  avail  as  far  as  this  case  is  concerned,  for 
there  is  no  pretense  that  any  of  them  have  ever  made  such  application  or  ever 
been  declared  citizens  of  the  United  States  by  any  court  of  the  same  or  of  the  _ 
State  of  North  Carolina.  On  this  subject  Judge  Deady,  in  the  case  of  United^ 
States  r.  Osborne  (6  Sawyer,  406-409),  has  well  said: 

'■  But  an  Indian  can  not  make  himself  a  citizen  of  the  United  States  without 
the  consent  and  cooperation  of  the  Government.  The  fact  that  he  has  abandoned 
his  nomadic  life  or  tribal  relations  and  adopted  the  habits  and  manners  of  civi- 
lized people  vaay  be  a  good  reason  why  he  shmild  be  made  a  citizen  of  the  United 
States,  but  does  not  of  itself  make  him  one.  To  be  a  citizen  of  the  United  States 
is  a  political  privilege  which  no  one  not  born  to  can  assume  without  its  consent 
in  some  form." 

The  effort  to  show  that  the  Eastern  Band  of  Cherokee  Indians,  in  disposing  of 
the  timber  in  controversy  and  in  making  the  contract  with  Boyd,  acted  as  a  cor- 
poration created  by  the  laws  of  the  State  of  North  Carolina  is  without  force,  for 
it  is  well  settled  that  neither  the  constitution  of  a  State  nor  an  act  of  its  legis- 
lature can  prevent  the  application  of  an  act  of  Congress  to  the  Indian  tribes 
residing  in  the  States,  but  subject  to  the  control  of  the  General  Government.  To 
hold  otherwise  would  be  to  make  the  constitution  of  a  State  and  the  laws  of  the 
same  the  supreme  law  of  the  land,  instead  of  the  Constitution  of  the  United  States, 
and  the  laws  and  treaties  made  in  prirsuance  thereof.     (Citj"  of  Minneapolis  i", 


CHEROKEE    TIMBER    CASE.  5 So 

ReiTiu,  56  Fed.,  576,  S.  C.  6,  C.  C.  A..  ;'.l;  United  States  v.  Holliday,  :j  Vv^all.,  419; 
Worcester  r.  State  of  Georgia,  6  Pet.,  515;  Rollins  v.  Cherokees.  87  N,  C,  259.) 

The  Congress  of  the  United  States  has  repeatedly,  since  the  treatj^  of  New 
Echota,  recognized  the  Eastern  Band  of  Cherokee  Indians  as  a  distinct  portion  of 
the  Cherokee  race,  and  has  dealt  with  them,  not  as  individuals,  but  as  a  band  dis- 
tinctive in  character,  dependent  on  the  United  States,  and  entitled  to  the  aid  and 
protection  of  the  General  Government.  (9  Stat.  L.,  118  ['-364] ;  10  Stat.  L.,  291.  700; 
15  Stat.  L.,  228;  16  Stat.  L.,  362;  18  Stat.  L.,  213:  19  Stat.  L.,  170;  22  Stat.  L.,  302 
[32S]  :  2?  Stat.  L,,  122.) 

The  act  of  July  29, 1848  (cited  above  in  9  Stat.  L.) ,  treated  said  Indians  as  under 
the  care  of  tlie  United  States,  and  provided  that  the  sum  of  money  due  them  under 
the  treaty  of  New  Echota  should  be  held  in  the  United  States  Treasury  indeli- 
nitely,  and  that  interest  thereon  should  be  paid  tliem.  The  act  of  July  27,  1868 
(cited  above  in  15  Stat.  L. ) ,  contained  this  provision:  "That  hereafter  the  Secre- 
tary of  the  Interior  shall  cause  the  Commissioner  of  Indian  Affairs  to  take  the 
same  supervisor}-  charge  of  the  Eastern  or  North  Carolina  Cherokees  as  of  other 
tribes  of  Indians.""  Theactof  July  15. 1870.  section  11  (as  cited  above  in  16  Stat.  L.), 
reads  as  follows: 

'•That  the  Eastern  Band  of  the  Cherokee  Indians,  by  that  name  and  stjde.  be, 
and  they  are  hereby,  authorized  and  empowered  to  institiite  and  carry  on  a  suit 
or  suits  in  law  or  equity  in  the  district  or  circuit  courts  of  the  United  States 
against  the  present  or  foi'mer  Indian  agent  or  agents  of  said  Ijand.  "••'  -  *  It 
shall  be  the  duty  of  the  district  attorney  and  the  Attorney-General  of  the  United 
States  to  institute  and  prosecute  all  suits  or  causes  v,diich  may  arise  tinder  this 
section."" 

The  act  of  July  23,1874  (cited  above  in  18  Stat.  L.).  provides  for  surveying 
the  lands  of  the  Cherokee  Indians  of  North  Carolina,  under  the  direction  of  the 
Secretary  of  the  Interior.  In  the  act  of  March  3,  1875  (cited  above  in  18  Stat.  L. ), 
theCongress  made  provision  for  the  payment  of  the  costs,  attorneys  fees,  and  other 
expenses  incurred  in  the  prosecution  of  the  suits  of  the  Eastern  Band  of  Cherokee 
Indians  v.  William  H.  Thomas  ot  al.,  which  had  been  instituted  as  authorized  by 
the  act  of  July  15,  1870.  The  act  of  August  14,  1876  (cited  above  in  19  Stat.  L.), 
directed  the  Commissioner  of  Indian  Affairs  to  receive  certain  lands  at  their  cash 
vahie.  which  was  ''to  be  determined  by  an  appraisal  to  be  approved  by  the  Secre- 
tary of  the  Interior  and  conveyed  to  the  Eastern  Band  of  Cherokee  Indians  in  fee 
simple.""  The  land  here  referred  to  is  the  land  from  which  the  timber  was  sold 
to  Boyd  by  the  conti'act  in  issue  in  this  cause.  The  act  of  August  15,  1876  (cited 
in  19  Stat.  L. ).  provides  for  the  salary  of  a  special  agent  for  the  Eastern  Band  of 
Cherokees.  and  then  abolishes  the  office;  but  the  act  of  August  7.  1882  (cited  in 
22  Stat.  L.),  authorizes  the  Secretary  of  the  Interior  to  appoint  an  Indian  agent 
for  said  band  of  Indians.  The  act  of  Jiily  1^3,  1892  (cited  above  in  27  StatL.), 
again  abolishes  the  office  of  Indian  agent  for  the  Eastern  Band  of  Cherokee  Indi- 
ans, and  required  the  superintendent  of  the  Indian  school  at  Cherokee.  N.  C,  an  ' 
officer  of  the  United  States  Government,  to  act  as  such  agent  for  said  Indians. 

This  shows  that  the  original  condition  of  the  Indians  in  this  country,  that  of 
pupilage  under  the  Government,  has  not  been  released  so  far  as  this  Eastern  Band 
of  Cherokees  is  concerned.  It  thus  appears  that  the  political  departments  of  the 
■Government  have  recognized  these  Indians  as  constituting  a  tribe,  at  least  within 
the  meaning  of  that  word  as  it  is  used  in  the  Constitution  of  the  United  States,  and 
it  is  a  rule  of  the  courts  in  matters  of  this  kind  to  follow  the  action  of  the  Executive 
"nd  the  dei^artments,  whose  duty  it  is  to  determine  such  affairs.  ( United  States  r. 
jlliday,  3  Wall.,  407. )  The  Supreme  Court  of  the  United  States,  in  United  States 
r.  Kagama  (118  U.  S.,  375,384),  referring  to  this  subject,  says: 

"The  power  of  the  General  Gov enunent  over  these  remnants  of  a  race  once 
powerful,  now  weak  and  diminished  in  number,  is  necessary  to  their  protection, 
as  well  as  to  the  safety  of  those  among  whom  they  dwell.  It  must  exist  in  that 
Government  because  it  never  has  existed  anywhere  else;  because  the  theater  of  its 
exercise  is  within  the  geographical  limits  of  the  United  States;  because  it  has 
never  been  denied,  and  because  it  alone  can  enforce  its  laws  on  all  the  tribes."" 

The  appellees  insist  that  if  the  Eastern  Baudot  Cherokee  Indians  were  not  made 
citizens  by  the  treaty  of  New  Echota,  that  they  certainly  were  by  the  act  of  Con- 
gress of  February  8,  1887  (24  Stat.  L.,  388).  That  portion  of  said  .statute  on 
which  this  insistence  is  based  reads  as  follows: 

"Sec.  6.  "•■'  *  *  And  every  Indian  born  ■within  the  territorial  limits  of  the 
United  States  to  whom  allotments  shall  have  been  nrade  under  the  provisions  of 
this  act,  or  under  any  law  or  treaty,  and  every  Indian  born  within  the  territorial 
limits  of  the  United  States  who  has  voluntarily  taken  up,  within  said  limits,  his 
resulence  separate  and  apart  from  any  tribe  of  Indians  therein,  and  has  :  do]ited 
the  habits  of  civilized  life,  is  hereby  declared  to  be  a  citizen  of  the  United  States, 


584 


DECISION    U.  S.  COURT. 


and  is  entitled  to  all  the  rights,  privileges,  and  immunities  of  such  citizens,  whether 
such  Indian  has  been  or  not,  by  birth  or  otherwise,  a  member  of  any  tribe  of  Indians 
within  the  territoi'ial  limits  of  the  United  States,  without  in  any  manner  impairing 
or  otherwise  affecting  the  right  of  any  such  Indian  to  tribal  or  other  property." 

This  section  has  no  application  to  a  tribe  of  Indians,  but  is  intended  to  cover  the 
case  of  the  individual  Indian  who  lias  taken  up  his  residence  separate  and  apart 
from  his  tribe,  and  has  adopted  the  habits  of  civilized  life.  There  is  no  contention 
here  that  any  members  of  the  Eastern  Band  of  Cherokees  have  so  separated  them- 
selves from  their  band,  thereby  becoming  citizens  of  the  United  States,  and  thatj 
as  such  they  made  the  contract  with  Boyd,  concerning  their  individual  property i 
On  the  contrary,  it  is  the  Eastern  Band  of  Cherokee  Indians,  as  such,  that  endeavl 
ors  to  sell  the  timber  to  Boyd  and  to  execute  the  contract  relating  to  the  same] 
Said  statute  is  not  applicable  to  the  case  we  are  now  considering. 

We  are  unable  to  agree  with  the  court  below  that  because  the  United  Stated 
sought  the  aid  of  a  court  of  equity  concerning  the  alleged  contract,  said  to  have 
been  made  by  Boyd  with  the  Eastern  Band  of  Cherokee  Indians,  that  it  was  the 
duty  of  court,  in  the  absence  of  fraud  or  unfair  dealing  in  the  making  of  said  con-j 
tract,  to  hold  the  same  valid  if  the  consideration  to  be  paid  for  the  timber  mentionec 
therein  was  a  fair  and  adequate  price  for  the  same. 

It  must  be  kept  in  mind  that  the  complainants  below  insisted  in  their  bill  tha^ 
the  United  States  had  refused  to  assent  to  the  arrangements  made  by  the  council 
of  the  Eastern  Band  of  Cherokees  with  Boyd,  and  that  therefore  no  contract  hac 
in  fact  been  made  for  the  sale  of  the  timber  mentioned  in  the  bill.  Finding  this  tc 
be  true,  we  think  it  follows  that  the  defendants  were  removing  said  timber  unlaw] 
fully,  and  that  therefore  they  should  have  been  restrained  from  so  doing  anc 
peri^etually  enjoined  from  further  interfering  with  the  same. 

It  will  not  do  to  say  that  the  Indian  tribes  subject  to  the  control  of  the  Depart] 
ment  of  the  Interior  may  be  permitted  to  dispose  of  their  property,  real  or  personal] 
without  the  approval  of  that  Department,  or  over  its  protest,  as  in  this  case,  anc 
that  the  courts  of  the  United  States  will  sanction  such  proceedings  and  decree 
them  to  be  valid  contracts,  in  the  absence  of  fraud  or  unfair  dealings.  We  mus| 
presume  that  the  Department  had  good  reasons  for  declining  to  approve  said  sale] 
and  we  think  that  in  the  absence  of  fraud  on  the  part  of  those  representing  it  its 
refusal  to  sanction  negotiations  of  the  character  here  involved  is  conclusive  of  thV 
matter.  To  hold  otherwise  would  produce  great  confusion  and  would  transfer 
from  that  Department  to  the  courts  most  of  the  controversies  relating  to  Indiai 
affairs  now  properly  disposed  of  by  it,  thereby  fostering  litigation  and  producing 
continuous  strife  among  the  different  Indian  tribes. 

The  conclusion  we  reach  is  altogether  independent  of  the  questions  raised  conj 
cerning  the  power  of  the  Eastern  Band  of  Cherokees  to  sell  and  transfer  the  lane 
conveyed  to  it  by  William  Johnston  and  wife,  as  either  with  or  without  the 
restrictive  clause  in  the  deed  from  Johnston  and  wife,  before  mentioned,  we  fine" 
that  the  United  States  have  the  power  to  supervise  and  control  the  affairs  of  those 
Indians  so  far  as  said  land  is  concerned. 

For  the  error  indicated,  the  decrees  complained  of  must  be  reversed  and  this 
cause  remandea  to  the  court  from  whence  it  came,  with  instructions  to  enter 
decree  of  the  character  indicated  by  this  opinion.  The  rights  of  the  parties,  ad 
affected  by  the  money  paid  by  those  claiming  under  the  supposed  contract  witli 
Boyd,  as  well  as  by  the  damages,  if  any,  occasioned  by  the  unlawful  removal  of 
said  timber,  can  be  adjusted  by  that  court  on  such  just  and  equitable  principles  as 
may  appear  to  be  proper  from  the  facts  as  thej'  now  appear  and  as  they  may  here-j 
after  be  presented. 

Disposing  of  these  questions  as  above  indicated,  we  find  it  unnecessary  to  con-j 
sider  the  other  matters  presented  by  the  assignments  of  error. 

Reversed  and  remanded. 


Photomount 

Pamphlet 

Binder 

Gaylord  Bros. 

Makers 

Syracyge, N. Y. 

PAT.  JAN  21,  1308 


UNIVERSITY  OF  N.c"cHAPEUHia 


00032197453 

FOR  USE  ONLY  IN 
THE  NORTH  CAROLINA  COLLECTION 


